# C_2010063EN.01000701.xml

| 13.3.2010 | EN | Official Journal of the European Union | C 63/7 |
| --- | --- | --- | --- |

13.3.2010

EN

Official Journal of the European Union

C 63/7

---

Judgment of the Court (Second Chamber) of 28 January 2010 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — Belgische Staat v Direct Parcel Distribution Belgium NV

(Case C-264/08) (1)

1

(Community Customs Code - Customs debt - Amount of duty - Articles 217 and 221 - Communities own resources - Regulation (EC, Euratom) No 1150/2000 - Article 6 - Requirement of entry in the accounts of the amount of duty before it is communicated to the debtor - Definition of ‘legally owed’)

2010/C 63/10

Language of the case: Dutch

Referring court

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Parties to the main proceedings

Applicant: Belgische Staat

Applicant:

Defendant: Direct Parcel Distribution Belgium NV

Defendant:

Re:

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Articles 217(1) and 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (in the version in force in 1992) (OJ 1992 L 302, p. 1) and of Article 6 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities own resources (OJ 2000 L 130, p. 1) — Post-clearance recovery of import or export duties — Whether or not the amount of duty must be entered in the accounts before being communicated to the debtor — Meaning of ‘entered ... in the accounting records or on any other equivalent medium’ — Recovery of undue payment

Operative part of the judgment

Operative part of the judgment

| 1. | Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that ‘entry in the accounts’ of the amount of duty to be recovered as referred to in that provision is the same as ‘entry in the accounts’ of that amount as defined in Article 217(1) of that regulation; |
| --- | --- |

1.

Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that ‘entry in the accounts’ of the amount of duty to be recovered as referred to in that provision is the same as ‘entry in the accounts’ of that amount as defined in Article 217(1) of that regulation;

| 2. | ‘Entry in the accounts’ within the meaning of Article 217(1) of Regulation No 2913/92 must be distinguished from entry of established entitlements in the accounts for own resources as referred to in Article 6 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities own resources. Since Article 217 of Regulation No 2913/92 does not lay down any practical procedures for ‘entry in the accounts’ within the meaning of that provision or, accordingly, any minimum requirements of a technical or formal nature, that entry in the accounts must be made in a way which ensures that the competent customs authorities enter the exact amount of the import duty or export duty resulting from a customs debt in the accounting records or on any other equivalent medium, so that, inter alia, the entry in the accounts of the amounts concerned may be established with certainty, including with regard to the person liable; |
| --- | --- |

2.

‘Entry in the accounts’ within the meaning of Article 217(1) of Regulation No 2913/92 must be distinguished from entry of established entitlements in the accounts for own resources as referred to in Article 6 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities own resources. Since Article 217 of Regulation No 2913/92 does not lay down any practical procedures for ‘entry in the accounts’ within the meaning of that provision or, accordingly, any minimum requirements of a technical or formal nature, that entry in the accounts must be made in a way which ensures that the competent customs authorities enter the exact amount of the import duty or export duty resulting from a customs debt in the accounting records or on any other equivalent medium, so that, inter alia, the entry in the accounts of the amounts concerned may be established with certainty, including with regard to the person liable;

| 3. | Article 221(1) of Regulation No 2913/92 must be interpreted as meaning that the amount of import or export duty due can be validly communicated to the debtor by the customs authorities, in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities. The Member States are not required to adopt specific procedural rules on the manner in which communication of the amount of import or export duty is to be made to the debtor where national procedural rules of general application can be applied to that communication, which ensure that the debtor receives adequate information and which enable him, with full knowledge of the facts, to defend his rights; |
| --- | --- |

3.

Article 221(1) of Regulation No 2913/92 must be interpreted as meaning that the amount of import or export duty due can be validly communicated to the debtor by the customs authorities, in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities. The Member States are not required to adopt specific procedural rules on the manner in which communication of the amount of import or export duty is to be made to the debtor where national procedural rules of general application can be applied to that communication, which ensure that the debtor receives adequate information and which enable him, with full knowledge of the facts, to defend his rights;

| 4. | Community law does not preclude the national court from proceeding on the assumption, based on the declaration by the customs authorities, that the ‘entry in the accounts’ of the amount of import or export duty within the meaning of Article 217 of Regulation No 2913/92 took place before that amount was communicated to the debtor, provided that the principles of effectiveness and equivalence are observed; |
| --- | --- |

4.

Community law does not preclude the national court from proceeding on the assumption, based on the declaration by the customs authorities, that the ‘entry in the accounts’ of the amount of import or export duty within the meaning of Article 217 of Regulation No 2913/92 took place before that amount was communicated to the debtor, provided that the principles of effectiveness and equivalence are observed;

| 5. | Article 221(1) of Regulation No 2913/92 must be interpreted as meaning that the communication of the amount of duty to be recovered must have been preceded by the entry in the accounts of that amount by the customs authorities of the Member State concerned and that, if it has not been entered in the accounts in accordance with Article 217(1) of Regulation No 2913/92, that amount may not be recovered by those authorities, which however remain entitled to proceed with a new communication of that amount, in accordance with the conditions laid down by Article 221(1) of Regulation No 2913/92 and the limitation rules in force at the time the customs debt was incurred; |
| --- | --- |

5.

Article 221(1) of Regulation No 2913/92 must be interpreted as meaning that the communication of the amount of duty to be recovered must have been preceded by the entry in the accounts of that amount by the customs authorities of the Member State concerned and that, if it has not been entered in the accounts in accordance with Article 217(1) of Regulation No 2913/92, that amount may not be recovered by those authorities, which however remain entitled to proceed with a new communication of that amount, in accordance with the conditions laid down by Article 221(1) of Regulation No 2913/92 and the limitation rules in force at the time the customs debt was incurred;

| 6. | Although the amount of import duty or export duty remains ‘legally owed’ within the meaning of Article 236(1), first subparagraph, of Regulation No 2913/92, even where that amount was communicated to the person liable without having been entered in the accounts beforehand in accordance with Article 221(1) of that regulation, the fact remains that, if such communication is no longer possible because the period laid down in Article 221(3) of that regulation has expired, that person must in principle be able to obtain repayment of that amount from the Member State which levied it. |
| --- | --- |

6.

Although the amount of import duty or export duty remains ‘legally owed’ within the meaning of Article 236(1), first subparagraph, of Regulation No 2913/92, even where that amount was communicated to the person liable without having been entered in the accounts beforehand in accordance with Article 221(1) of that regulation, the fact remains that, if such communication is no longer possible because the period laid down in Article 221(3) of that regulation has expired, that person must in principle be able to obtain repayment of that amount from the Member State which levied it.

---

(1)  OJ C 247, 27.9.2008.

1

---